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After Justice Antonin Scalia died in February, the court deadlocked 4-4 on a First
Amendment challenge by a group of California school employees who urged the justices
to overturn an almost 40-year precedent allowing public sector unions to collect “agency
fees” from employees who don’t join the union.

The effect was to leave in place
Abood v. Detroit Board of Education, the 1977 decision that holds unions don’t violate the constitutional rights of nonmembers
if they charge them for the costs of collective bargaining and contract administration
but don’t force them to contribute to union political activities.

But once President-elect Donald Trump (R) nominates a new justice to fill Scalia’s
seat—and the Senate confirms the nominee—
Abood’s days are numbered, said Goldstein, a veteran Supreme Court practitioner who is
also co-founder and publisher of SCOTUSblog.

More cases are percolating in the lower federal courts that raise the same First Amendment
free speech and freedom of association arguments posed by the California teachers
who opposed paying any fees to the California Teachers Association.

A court with a ninth justice who’s a Trump appointee will take one of those cases
for review and the new conservative majority will complete the work it almost accomplished
in
Friedrichs v. California Teachers Association, Goldstein said.

A reversal of
Abood will have “downstream effects on all public employee unions,”
said Goldstein, a partner in Goldstein & Russell in Bethesda, Md.

“The broader question is what happens to these unions in general and how much of a
free rider question there will really be” once they can’t collect agency fees, Goldstein
said.

Public employee unions have survived in some right-to-work states where they already
are barred from collecting fees from nonmembers.

So “it’s an open question”
about “how catastrophic” a decision reversing
Abood would be for public sector unions, Goldstein said.

But “it’s obviously a big question”
and one that a Supreme Court ruling very likely could pose within the next few years,
he said.

Goldstein spoke at the American Bar Association Labor and Employment Law Section’s
annual meeting in Chicago.

Some Issues Could Be Stymied

Three petitions for Supreme Court review currently are pending that raise the issue
of whether employment arbitration agreements that include waivers of employees’ ability
to pursue class actions violate the National Labor Relations Act.

The National Labor Relations Board in
D.R. Horton Inc. held arbitration pacts containing class action waivers violate the NLRA because they
infringe workers’
rights to engage in concerted activities to protect their rights.

Federal appeals courts have split on whether to accept the NLRB’s position and the
betting was that the Supreme Court would accept review and resolve the statutory interpretation
issue, Goldstein said.

It was shaping up as potentially one of the most significant labor and employment
decisions in recent terms, he said.

But the Trump administration’s appointment of a new U.S. solicitor general, the Justice
Department lawyer who represents federal agencies before the Supreme Court, might
take the air out of the balloon.

It’s quite possible a Trump administration solicitor general, who reports to the attorney
general and ultimately the president, wouldn’t support the NLRB’s position, Goldstein
said.

If that’s the case, the Supreme Court could lose interest in review if there’s no
administration advocate for the NLRB’s position.

“So this is one of several cases in which the solicitor general is going to have to
confront how much to change the administration’s position,” Goldstein said. “My guess
is that the administration probably will suggest these cases be remanded to their
respective appeals courts for reconsideration in light of whatever position the government
starts to articulate.”

Chances of a Supreme Court ruling are diminished because the result “depends so much
on deference to the administration’s interpretation of the statute, which is now poised
potentially to change,” he said.

Remand on Church Plan Exemption?

Three pending petitions from church-affiliated hospitals asking the high court to
resolve the meaning of a “church plan exemption” in the Employee Retirement Income
Security Act could meet a similar fate, Goldstein said.

Federal appeals courts generally have ruled the act’s exemption covers only pension
plans actually started by churches and doesn’t reach those begun by church-affiliated
organizations, such as hospitals that may have hundreds or thousands of employees.

The new administration’s recommendation, and the Supreme Court’s decision, might be
to remand theses cases to their respective appeals courts for reconsideration too,
he said.

Transgender Case Could Be Curtailed

The court already has granted review of a Virginia county school district’s challenge
to a federal appeals court
ruling that the district might have to allow a male transgender student to use the boys’
bathroom at school.

The issue is whether a court must defer to the U.S. Department of Education’s interpretation
of sex discrimination under Title IX of the Education Amendments of 1972. The education
department takes the position that Title IX means a transgender student can’t be denied
access to the bathroom consistent with his gender identity.

This case could “blow up” in the Trump administration because it involves deference
to a federal agency’s interpretation and the new administration might take a different
view of Title IX, Goldstein said.

If a new solicitor general declines to defend the education department’s current interpretation,
this case could peter out and also result in a remand to the appeals court, he said.

No Court Expansion of LGBT Rights

The court is unlikely to reverse its 2015
decision recognizing same-sex marriage as a constitutional right, Goldstein said.

Same-sex marriage has become “just too embedded” in “our social structure” for the
court in the Trump administration to reverse course, he said.

But the Trump administration could be more sympathetic to First Amendment speech or
religion claims by vendors or others who say they are being forced to support same-sex
marriage in conflict with their beliefs, he said.

“I think the expansion of same-sex rights”
in the courts “is likely to be slowed considerably,” Goldstein said.

To contact the reporter on this story: Kevin McGowan in Chicago at
kmcgowan@bna.com

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